Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Thursday, December 18, 2008

OFP, L.L.C. v. The State of New Jersey

A-76-07
12-9-08

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Skillman’s opinion.

State of New Jersey v. Kevin C. Williams

A-4616-04T4
12-12-08

The Court held that there was no violation of an order of sequestration or defendant's constitutional rights when the victim remained in the courtroom after testifying, overheard defendant speak, and was recalled to make vocal identification.

Editor: Caitlin Yaeger

Friday, December 05, 2008

State of New Jersey in the Interest of P.M.P.

A-5156-07T4
12-01-08

We conclude a juvenile delinquency complaint, filed at the
direction of a county prosecutor's office, is not the
substantial equivalent of an indictment such that it initiates a
formal adversarial proceeding and triggers a juvenile's right to
counsel. We reverse the trial court's extension of the
protections of State v. Sanchez, 129 N.J. 261, 277 (1992) to
juvenile proceedings.

Friday, November 21, 2008

11-18-08 State of New Jersey v. Steven Stull

A-5097-06T4
Defendant was convicted of simple assault. He contends
that the evidence did not permit the trial court to find that he
caused "physical pain." N.J.S.A. 2C:11-1a; N.J.S.A. 2c:12-2a.
Defendant placed and held the victim in a headlock for twenty to
thirty seconds, squeezed his neck and yanked and swung him
around. There was no testimony about the victim's pain and he
did not sustain bruises or seek or receive treatment. We
conclude that the State met its obligation to prove guilt beyond
a reasonable doubt through proof of defendant's conduct and
inferences reasonable on the evidence as a whole.

Editor: Eric Waage

Wednesday, November 12, 2008

11-10-08 State of New Jersey v. Thomas E. Best

A-0891-07T4
A school principal may search a student's car parked on
school grounds whenever, under the totality of the
circumstances, the principal reasonably suspects that evidence
of criminal activity will be found in the vehicle. In light of
the strong State interest in maintaining order, safety and
discipline in the school environment, neither probable cause nor
a warrant is required.

Editor: Eric Waage

11-10-08 State v. Ernest Spell

(A-99-07)

The Court affirms defendant’s conviction substantially for the
reasons expressed by the Appellate Division. The Court vacates
that part of the Appellate Division’s holding that requires
police officers to read the final, additional paragraph of the
standard statement whenever a defendant refuses to provide a
breath sample immediately upon request.

Monday, November 10, 2008

Winter/ Christmas Break- 3 week Full time Volunteer Internship for Public Defender and Law Office

Winter/ Christmas Break- 3 week Full time Volunteer Internship for Public Defender and Law Office


The Law Office of Kenneth Vercammen established a special Winter break legal internship program for 3rd & 4th year college students . For the Winter/ Christmas program selected interns must work 30 hours per week for 3 weeks minimum

The "Law Clerk Mentor/Internship Program" is now in its 12th year. Students interested in a career in law obtain experience in law office procedures, preparing legal correspondence, and assisting clients. Students will also help the Metuchen Public Defender.
The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen invites students interested in attending law school or a career in law enforcement to apply to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and Friday afternoon court sessions.

Interested students must mail or fax a cover letter indicating the internship they are applying for and resume

LAW OFFICE WINTER/ CHRISTMAS BREAK- VOLUNTEER INTERNSHIPS EDISON, N.J.
Volunteer students will have an the opportunity to work in a busy law office and work with real clients.

1 WORK ON MUNICIPAL COURT CASES
-MAKE DEMANDS FOR DISCOVERY AND REVIEW POLICE REPORTS
-ATTEND TRIALS AND LEARN FROM EXPERIENCED TRIAL ATTORNEYS,
-PREPARE MOTIONS TO SUPPRESS AND MOTIONS TO DISMISS
-CONDUCT APPROPRIATE LEGAL RESEARCH
- ACQUIRE SKILLS IN CRIMINAL LAW AND PROCEDURE BY ACTIVE PARTICIPATION
- PARTICIPATE IN PUBLIC RELATIONS ACTIVITIES and help set up seminars
- Update Lists of Prosecutors, Judges and Attorneys for publication of
NJ Municipal Court Law Review
- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments.

2. WORK ON CRIMINAL AND DWI CASES
- CONTACT MUNICIPAL PROSECUTOR TO OBTAIN DISCOVERY
-CONTACTS WITH COURT AND COUNTY PROSECUTOR'S OFFICE
-PREPARE DISCOVERY DEMANDS
-EVIDENCE REVIEW AND ORGANIZATION
-PREPARATION FOR TRIAL AND ATTEND HEARINGS
3. WILLS & PROBATE PRACTICE
- ACT AS FORMAL WITNESS TO WILLS, POWER OF ATTORNEY AND OTHER LEGAL DOCUMENTS
-PUBLICIZE WILL SEMINARS AND ATTEND PROGRAMS FREE OF CHARGE
4 -WORK ON COMMUNITY RELATIONS AND MARKETING including submitting articles to legal websites and search engines

5. WORK ON PLAINTIFF PERSONAL INJURY & LITIGATION MATTERS
-ACCIDENT INVESTIGATION AND WITNESS CONTACTS
-CONTACT DOCTORS AND HOSPITALS TO OBTAIN MEDICAL RECORDS
-MEDICAL & EVIDENCE REVIEW
-CONTACT DEFENSE ATTORNEYS TO REQUEST DISCOVERY
-PREPARATION OF COMPLAINT, SERVICE ON DEFENDANTS
- ANSWERING & SERVING INTERROGATORIES AND OTHER DISCOVERY REQUESTS
-ATTEND HEARINGS

For the Winter/ Christmas program selected interns must work 30 hours per week for 3 weeks minimum
This is an excellent opportunity to gain valuable experience as a volunteer intern and learn New Jersey Practice and Procedure. Build your resume and obtain marketable skills. Longer hours or weeks permitted. On Tuesday night and Friday afternoon, we work on Public Defender cases. Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments. You can work more hours if you want. Help people less fortunate than you who are down on their luck.
You will handle a client's file and learn details on running a successful law practice. This will not be a brief-writing and photocopying clerkship. For additional information on the Law Office, please visit the website at www.njlaws.com
Mail or fax cover letter and resume. Do not email.
You will help handle a client's file and learn details on running a successful law practice. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. It is helpful if applicants have some familiarity with HTML programming, web page design and maintenance and Internet technology. If you can update a website, please indicate so in the first paragraph of your cover letter. This office is committed to excellence and service to clients and the community. Applicants must have attention to detail.
Mail or fax cover letter and resume. Do not email.
Kenneth Vercammen & Associates, PC
2053 Woodbridge Avenue, Edison, NJ 08817 [near Rt 287 and the NJ Turnpike] 1.3 Miles from Edison Train Station- NJ Transit
PHONE 732-572-0500 (Fax) 732-572-0030

Friday, October 31, 2008

10-30-08 State v. Jeffrey Nemes

A-6320-07T4
An interlocutory order denying a motion to dismiss on
double jeopardy grounds is not appealable as a final judgment.

Editor: Eric Waage

10-10-08 State of New Jersey v. Anthony Alexander

A-6333-06T4
In this appeal, the court reversed the denial of postconviction
relief because trial counsel's representation of both
defendant and another individual, who allegedly participated in
crimes with defendant, placed counsel in a per se conflict of
interest. The court held that because the conflict arose
between the entry of a guilty plea but before sentencing, there
was no cause to disturb the plea, but that defendant was
entitled to be resentenced following a determination of what
might have occurred had defendant sought to cooperate with law
enforcement regarding his alleged cohort.

10-06-08 State of New Jersey v. John Taimanglo

A-2569-06T2
Part III of the Rules govern municipal appeals in the Law
Division. Defendant must be afforded right to be present and
allocution unless waived on the record. He must also be advised
of right to appeal and State v. Molina, 187 N.J. 531 (2006)
applies in the absence of adherence to R. 3:21-4(h). The
conviction in this case is affirmed because the remand conducted
pending the appeal permitted defendant to raise all issues in
the Law Division and the de novo review cured defects in the
municipal court proceedings.

09-30-08 State of New Jersey v. Jayson Williams

A-2524-07T4
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.

09-18-08 State of New Jersey v. Quadir Whitaker

A-4340-05T4
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed

Friday, October 03, 2008

State v. Scott E. Schnabel

7-29-08 State v. Scott E. Schnabel (A-13-07)
The Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence
was properly admitted and, in light of that evidence, evidence
of third-party sexual abuse should have been admitted.

Editor: Eric Waage

State v. Shariff Ingram

7-21-08 State v. Shariff Ingram (A-58/59-07)
When a defendant is charged as an accomplice and lesser-included
offenses already are charged in an indictment, the trial court
comprehensively must charge the jury on the elements both of the
lesser-included crimes and of accomplice liability.
Nevertheless, the failure to so separately charge the jury here
did not constitute reversible error. The prosecutor did not
misstate the applicability of the statutory affirmative defense
to felony murder. In these circumstances, it was error for the
trial court to instruct the jury that the defendant’s voluntary
absence from the trial could be construed by the jury as
evidence of consciousness of guilt, and that error mandates a
new trial.

Wednesday, October 01, 2008

State of New Jersey v. Hiram Rodriguez

03-28-08 State of New Jersey v. Hiram Rodriguez
A-4614-05T4
In this appeal, the court determined that the police
complied with the "reasonable wait time" standard and therefore
did not violate the "knock and announce" rule, which is
incorporated in the Fourth Amendment and Article I, paragraph 7
of the state constitution, when they waited fifteen to twenty
seconds after announcing their presence before entering the
premises.
The State also argued in this appeal that Hudson v.
Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006), which holds that the Fourth Amendment does not require
application of the exclusionary rule upon a knock and announce
violation, should be followed in determining the appropriate
remedy for a similar violation of our state constitution. Since
the court found no violation, it recognized that it was not
necessary to decide this issue but expressed in dictum its doubt
that Hudson would be followed in determining the remedy
available upon a breach of the state constitutional knock and
announce rule.
Judge Stern filed a concurring opinion.

Editor: Eric Waage

State of New Jersey v. Brenda Hoffman

03-31-08 State of New Jersey v. Brenda Hoffman
A-6473-06T4
In this appeal, we reverse an order admitting defendant
into a Pretrial Intervention program over the prosecutor's
objection. We conclude the victims' status as police officers
does not eviscerate N.J.S.A. 2C:43-12(e)(4), which requires
prosecutors to consider "[t]he desire of the complainant or
victim to forego prosecution."

State of New Jersey v. Forrest M. Baker, Sr.

04-14-08 State of New Jersey v. Forrest M. Baker, Sr.
A-6018-05T4
Defendant, a federal inmate at the Fort Dix Correctional
Facility in Wrightstown, was produced for pre-trial appearances
and for trial in the Law Division by way of the judge's "order
to produce." We concluded that defendant's pre-trial motion to
dismiss the indictment pursuant to the "anti-shuttling"
provision of the Interstate Agreement on Detainers (IAD),
N.J.S.A. 2A:159A-4, was properly denied. Because a writ of
habeas corpus ad prosequendum is not a detainer for IAD
purposes, the statute was not triggered and the motion was
properly denied.

State of New Jersey v. James Robinson

04-15-08 State of New Jersey v. James Robinson
A-6381-05T4
In this appeal, we reverse the trial court's denial of
defendant's motion to suppress evidence found in his dwelling.
Our decision is grounded exclusively under the rights conferred
in Article I, paragraph 7 of the Constitution of the State of
New Jersey.
In executing a knock-and-announce warrant, the police must
give the occupants of the dwelling a reasonable opportunity to
respond before resorting to the use of force to gain entry to
the residence. Here, the police broke down the entrance door of
the dwelling, twenty to thirty seconds after announcing their
presence, thus converting the knock-and-announce warrant into a
de facto no-knock warrant. Furthermore, the use of a so-called
flash bang explosive device by the police was factually
unwarranted, and rendered a nullity the warrant's knock-andannounce
condition imposed by the court.

State of New Jersey v. James Robinson

04-15-08 State of New Jersey v. James Robinson
A-6381-05T4
In this appeal, we reverse the trial court's denial of
defendant's motion to suppress evidence found in his dwelling.
Our decision is grounded exclusively under the rights conferred
in Article I, paragraph 7 of the Constitution of the State of
New Jersey.
In executing a knock-and-announce warrant, the police must
give the occupants of the dwelling a reasonable opportunity to
respond before resorting to the use of force to gain entry to
the residence. Here, the police broke down the entrance door of
the dwelling, twenty to thirty seconds after announcing their
presence, thus converting the knock-and-announce warrant into a
de facto no-knock warrant. Furthermore, the use of a so-called
flash bang explosive device by the police was factually
unwarranted, and rendered a nullity the warrant's knock-andannounce
condition imposed by the court.

State of New Jersey vs. William Schadewald

05-05-08* State of New Jersey vs. William Schadewald
A-1191-06T5
1. A defendant convicted of a second or subsequent
offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50,
who seeks a step-down in sentence on the ground that one or more
of the prior convictions were uncounseled, pursuant to State v.
Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429,
112 L. Ed. 2d 413 (1990), must first petition for postconviction
relief (PCR) in the municipal court in which the
prior uncounseled conviction occurred.
2. The PCR proceedings in municipal court are governed by
Rule 7:10-2(f) and (g). [*Approved for Publication date]
05-01-08 Milford Mill 128, LLC v. Borough of Milford and the Borough
of Milford Joint Planning Board and Zoning Board of
Adjustment
A-5508-06T1
The Borough of Milford in March 2004 designated 70 acres of
a defunct paper mill as an area in need of redevelopment under
the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A.
40A:12A-1 to -49. In January 2006 the Borough adopted a
Redevelopment Plan for the site, calling for a mix of commercial
and residential uses and substantial areas set aside for open
space and wetlands. Among other things, the Plan requires that
a party seeking to develop the site must first obtain from the
Borough Council a determination of consistency with the Plan
before submitting its proposal to the Joint Planning Board and
Board of Adjustment ("the Joint Board").
Plaintiff, a contract purchaser, seeks to develop the site
with markedly higher densities and more expansive uses than
those called for under the Redevelopment Plan. Plaintiff sought
use variances that would allow it to build units at more than
sixteen times the area's permitted residential density, and
which would nearly double the Borough's entire population. When
the Joint Board declined to act on the variance application,
plaintiff in February 2007 filed an action in lieu of
prerogative writs, alleging various constitutional and statutory
claims. The Law Division dismissed plaintiff's complaint.
We affirm the Law Division's dismissal because, pursuant to
the Redevelopment Plan, plaintiff must obtain a consistency
finding from the Borough Council as a precondition of having its
development project considered by the Joint Board. The
situation here is distinguishable from that in Weeden v. City
Council of Trenton, 391 N.J. Super. 214 (App. Div.), certif.
denied, 192 N.J. 73 (2007), because plaintiff's proposal is not
a "minor exception" to the Redevelopment Plan, but rather an
attempt to rezone, de facto, the entire redevelopment area.
We also sustain the trial court's finding that plaintiff's
lawsuit challenging the merits of the Plan, more than two years
after its adoption, is untimely under Rule 4:69-6(a). However,
as the trial court's order contemplates, the dismissal of the
present action is without prejudice to future proceedings. Such
proceedings may include a potential inverse condemnation action
if the existing Plan ultimately deprives plaintiff, or the title
owner, of all economically beneficial uses of the property.

State of New Jersey v. Philip J. Castagna

05-12-08 State of New Jersey v. Philip J. Castagna
A-4402-06T5
In trial of former police chief for arson and conspiracy to
murder his wife, fact that the wife obtained a domestic violence
temporary restraining order against defendant resulting in his
suspension from office deemed admissible under Rule 404(b) on
State's theory of motive. Similarly, charges later filed by
wife of violation of the TRO and terroristic threats, resulting
in conviction on disorderly persons charges and forfeiture of
defendant's office, also held admissible as to motive. Jury to
receive limiting instructions including an instruction that
defendant's conviction on disorderly persons charges was
reversed after defendant's indictment on arson and conspiracy
charges.

Editor: Eric Waage

State of New Jersey v. Steven R. Fortin

06-04-08 State of New Jersey v. Steven R. Fortin
A-3579-07T4
Defendant convicted of capital murder committed in 1994
cannot be sentenced to life-without-parole because at the time
of offense the maximum parole ineligibility term was thirty
years and under the December 17, 2007 amendments to the murder
statute the defendant can no longer present mitigating factors
to reduce the sentence to such term if not outweighed by
aggravating factors. The State did not advocate trying the
matter as a capital case would have been tried to achieve a
sentence of life-without-parole. Moreover, the holding is
narrow as amendments such as the life-without-parole provisions
of N.J.S.A. 2C:11-3 and No Early Release Act statutes would
affect the sentences of capital murders after those statutes
took effect.

State of New Jersey v. Jacob Burno-Taylor

06-19-08 State of New Jersey v. Jacob Burno-Taylor
A-0265-07T4
Because defendant's right to remain silent was not
scrupulously honored, the trial court should have granted
defendant's motion to suppress his statement.

State of New Jersey v. Maribel Rolon, et al.

06-20-08 State of New Jersey v. Maribel Rolon, et al.
A-1049-06T4
In this appeal, we reverse defendant's conviction for
first-degree robbery and remand for a new trial. Although the
jury determined defendant was armed with a deadly weapon——a
knife——the court committed reversible error when it instructed:
"defendant's intent with respect to the [knife] is irrelevant."

State of New Jersey v. Anthony Gioe, et al.

07-02-08 State of New Jersey v. Anthony Gioe, et al.
A-1214-06T5
The novel issue addressed in this appeal is whether a
search warrant is invalid where an affiant failed to appear
personally before a municipal court judge as required under Rule
3:5-3(a). We found the "insufficiencies or irregularities" in
the proceedings to obtain the search warrant did not violate
defendant's substantive rights, and they did not invalidate the
search warrant that was issued. R. 3:5-7(g). Accordingly, we
affirmed the order denying defendant's motion to suppress.
07-02-08 Harbor Commuter Service, Inc., Harbor Shuttle Inc.,
Walter Mihm and Stanis B. Mihm v. Frenkel & Co., Inc.,
McCue Captains Agency, Inc., and AON Risk Services,
Inc. of Ohio

State v. Rambo

07-22-08 State v. Rambo
A-5923-04T4
Defendant, who admitted shooting and killing his wife, was
convicted of murder. The trial court correctly refused to
charge passion/provocation manslaughter. Defendant argued he
was entitled to a new trial because the Probate Part had
refused, under the "Slayer Statutes" to allow him access to
funds to retain private counsel of his choice. We did not
procedurally have jurisdiction to review the orders of the
Probate Part because defendant's appeal was only from the
judgment of conviction.

State v. V.D.

07-23-08 State v. V.D.
A-2357-06T5
Defendant entered a negotiated plea of guilty to two counts
of the fourth-degree crime of possession of a false document,
N.J.S.A. 2C:21-2.1(d). The trial court placed defendant on
probation with the special condition that she notify the Bureau
of Immigration and Customs Enforcement (ICE). We struck that
condition. It was not reasonably contemplated by defendant when
she pled guilty and, in any event, exceeded the authority of the
trial court.

State of New Jersey v. Joseph M. Bringhurst

07-23-08 State of New Jersey v. Joseph M. Bringhurst
A-4302-06T5
We conclude that post-conviction relief (PCR) petitions
brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied,
498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must
comply with Rule 7:10-2, and are subject to the five-year limit
contained in Rule 7:10-2 (g)(2). However, those time limits may
be relaxed to prevent an injustice. Because a Laurick PCR
cannot be brought until there is a second or subsequent DWI
conviction, the time bar should not mechanically be applied to
deny the petition. However, to obtain the benefit of relaxation
of the time limit, a defendant must put forth a prima facie case
for relief in his petition itself.
In this case, where defendant's prior, uncounseled
conviction was allegedly rendered ten years earlier, he failed
to put forth a prima facie case for relief in his PCR petition.
Therefore, its denial was appropriate.

State of New Jersey v. Cecilia X. Chen

07-31-08 State of New Jersey v. Cecilia X. Chen
A-4251-06T5
The admissibility of the identification evidence presented
at trial is the most significant issue raised on this appeal
from a conviction for attempted murder. The victim initially
identified the defendant under highly suggestive circumstances
that posed a significant risk of compromising the initial and
subsequent identifications. Law enforcement officers had no
role in creating, encouraging or permitting the highly
suggestive procedures utilized at the time of the initial
identification.
We conclude that when there is evidence that the highly
suggestive words or conduct of a private citizen pose a
significant risk of misidentification, a preliminary hearing on
admissibility of the identification is required. The holding is
based on the court's responsibility to ensure that evidence of
pre-trial identifications meet the standard for admission of
such evidence, N.J.R.E. 803, and the Court's authority to
exclude evidence of subsequent identifications that are of such
questionable reliability that the probative value is
substantially outweighed by the risk of prejudice and misleading
the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299,
316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).

State v. Robert K. Thompson, et al.

08-01-08 State v. Robert K. Thompson, et al.
A-2279-07T4
Violation of the Conflicts of Interest Law and a
corresponding Code of Ethics of a department of State
government, standing alone, does not provide a basis for
criminal prosecution for official misconduct. We affirmed the
dismissal of counts containing such charges. But when such
violations are combined with official acts benefiting or
intending to benefit the party with whom the public official has
a conflict, official misconduct may be charged. We reversed the
dismissal counts containing such charges.

State v. Oscar Osorio

08-04-08 State v. Oscar Osorio
A-2067-05T4
Under the 2005 decision of the Supreme Court of the United
States in Johnson v. California, a defendant may establish a
prima facie case of the discriminatory use of peremptory
challenges by producing evidence sufficient to support an
inference that discrimination has occurred. Therefore, the part
of our Supreme Court's decision in Gilmore that required a
defendant to show a "substantial likelihood" of the
discriminatory use of peremptory challenges to establish a prima
facie case has been superseded by Johnson.

State of New Jersey v. Michael A. Cooper

08-06-08 State of New Jersey v. Michael A. Cooper
A-1066-06T4
On remand following the Appellate Division's decision
ordering that sentences be served concurrently, and not
consecutively as originally imposed, the aggregate sentence
imposed on remand cannot be longer than the period of parole
ineligibility flowing from the original sentence as well as the
original aggregate specific term; hence, on remand when a
consecutive sentence must be made to run concurrent with a
sentence carrying a parole ineligibility term under the No Early
Release Act, the new specific term sentence imposed cannot be
greater than that which produces an 85 percent parole
ineligibility term greater than the original period of parole
ineligibility.

State of New Jersey v. Walter Quezada

08-13-08 State of New Jersey v. Walter Quezada
A-6472-05T2
A volunteer fireman who calls in false alarms and responds
to the scene of the reported fire may be convicted of official
misconduct, N.J.S.A. 2C:30-2. A conviction for setting false
fire alarms, N.J.S.A. 2C:33-3, merges into official misconduct
when the false alarm constitutes the official misconduct.

State of New Jersey v. Quadir Whitaker

09-18-08 State of New Jersey v. Quadir Whitaker
A-4340-05T4
Defendant was convicted under the principle of accomplice
liability, N.J.S.A. 2C:2-6b(3), of having committed the crimes
of first-degree robbery and felony murder. The question
presented on appeal is whether a defendant charged as an
accomplice may be found guilty of robbery by uttering an
instruction to the principal, during the immediate flight from
an attempted theft, to hide the weapon used during the attempted
theft, after all necessary elements of the crime of robbery have
concluded.
We answered the question in the negative. We held that the
phrase contained in the robbery statute, "[a]n act shall be
deemed to be included in the phrase 'in the course of committing
a theft'" N.J.S.A. 2C:15-1a, refers only to those acts set forth
in sections a(1), (2), and (3) of the statute which elevate
simple theft, or attempted theft, to the crime of robbery. We
determined that the phrase does not encompass other acts
committed by an alleged accomplice after all elements necessary
to constitute the crime of robbery had concluded. Lastly, to
the extent that State v. Williams, 232 N.J. Super. 432 (App.
Div.), certif. denied, 118 N.J. 208 (1989) and State v. Baker,
303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470
(1997) hold to the contrary, we disagreed.

State of New Jersey v. Jayson Williams

09-30-08 State of New Jersey v. Jayson Williams
A-2524-07T4
There can be no dispute that a criminal investigation
infected by racial animus would violate a defendant's due
process rights. Clearly there is no room for racial bias in any
law enforcement investigation.
On leave granted, the State argues that the trial court
erred in ordering the State to disclose to defendant records
relating to racial remarks made by a "senior officer" in the
prosecutor's office during a briefing on the case.
In the majority's view, where blatantly racist remarks have
been made by a "senior officer" during a briefing on the case,
due process requires that we allow discovery of relevant
information to determine whether the investigation and/or
prosecution was tainted by racism such that the outcome may have
been different.
A dissent was filed by Wefing, J.A.D.

Editor: Eric Waage

Saturday, August 30, 2008

State v. M.A.

08-29-08 State v. M.A.
A-4922-06T4

Defendant stole over $650,000 from his employer. A
warrantless search of two workplace computers, conducted
pursuant to the employer's consent, revealed evidence confirming
the theft. Defendant appeals from the denial of his motion to
suppress evidence seized from the computers, contending that he
had a right to privacy in the personal information he stored in
the computers. We concluded defendant had no reasonable
expectation of privacy under the Fourth Amendment or the New
Jersey Constitution in the contents of the computers, including
the personal information.

State v. J.G.

8-20-08 State of New Jersey v. J.G.
A-2539-07T4

The cleric-penitent privilege may be invoked by either the
cleric or the penitent. To be protected by the privilege, the
communication must have been made (1) in confidence; (2) to a
cleric; and (3) to the cleric in his or her role as a spiritual
advisor.

The privilege does not apply where a cleric reaches out to
an individual to intervene in unlawful conduct -- in this case
sexual abuse of defendant's two daughters -- in an effort to
stop the unlawful conduct and the cleric refuses to provide
counsel or spiritual services -- in this case baptism -- to the
individual.

State v. Tri-Way Kars, Inc.

8-18-08 State of New Jersey v. Tri-Way Kars, Inc.
A-1256-07T4

We held that a municipal court had no jurisdiction under
N.J.S.A. 56:8-14 to assess a penalty for an alleged Consumer
Fraud Act violation in connection with the sale of a used motor
vehicle because N.J.S.A. 56:8-14 only grants jurisdiction over
penalty enforcement actions.

We also held that the Central Municipal Court of Bergen
County had no jurisdiction under N.J.S.A. 56:8-14.1 to assess
such a penalty because that statute expressly limits
jurisdiction over penalty assessment cases to municipalities
"where the offense was committed or where the defendant may be
found." Here, the offense was committed in South Hackensack
where defendant conducted business and we concluded that this
specific statute trumped the general power of the Assignment
Judge to refer cases to the Central Municipal Court under
N.J.S.A. 2B:12-1(e).

Finally, we provided guidance for future actions respecting
the insufficiency of the municipal court "Complaint-Summons SF-1
and SF-2" to adequately provide notice of the essential facts of
a penalty assessment action, as opposed to a penalty enforcement
action where the use of these forms has been approved by the
Administrative Office of the Courts.

State v. Walter Quezada

8-13-08 State of New Jersey v. Walter Quezada
A-6472-05T2

A volunteer fireman who calls in false alarms and responds
to the scene of the reported fire may be convicted of official
misconduct, N.J.S.A. 2C:30-2. A conviction for setting false
fire alarms, N.J.S.A. 2C:33-3, merges into official misconduct
when the false alarm constitutes the official misconduct.

Tuesday, August 12, 2008

State of New Jersey v. Michael A. Cooper

08-06-08 State of New Jersey v. Michael A. Cooper
A-1066-06T4

On remand following the Appellate Division's decision
ordering that sentences be served concurrently, and not
consecutively as originally imposed, the aggregate sentence
imposed on remand cannot be longer than the period of parole
ineligibility flowing from the original sentence as well as the
original aggregate specific term; hence, on remand when a
consecutive sentence must be made to run concurrent with a
sentence carrying a parole ineligibility term under the No Early
Release Act, the new specific term sentence imposed cannot be
greater than that which produces an 85 percent parole
ineligibility term greater than the original period of parole
ineligibility.

Friday, August 08, 2008

HANDLING DRUG, DWI & MOTOR VEHICLE VIOLATIONS IN MUNICIPAL COURT

HANDLING DRUG, DWI & MOTOR VEHICLE VIOLATIONS IN MUNICIPAL COURT
September 15, 2008 5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick

Speakers include:
HON. JOAN ROBINSON GROSS
Presiding Judge, Union County

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Editor: “New Jersey Municipal Court Review”
2006 NJSBA Municipal Court Practitioner of the Year
Kenneth Vercammen & Associates (Edison)

WILLIAM G. BRIGIANI, ESQ.
Brigiani, Cohen, & Schneider (East Brunswick)

JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)

Dennis Driscoll
Municipal Prosecutor (Denville, Montville, Rockaway Township, Morris Plains & Netcong)
You’ll receive a CD containing over 2,000 pages of forms, discovery motions, briefs and orders, plus the 264 page Judge King Chun report, Chun opinion and Attorney General Guidelines
This practical program featured a top notch panel of experienced practitioners and a Municipal Court judge. They provide instructions on handling the more serious drug, DWI and traffic offenses someone id likely to confront and suggest effective strategies for handling the.
Includes

EFFECTIVE STRATEGIES & PRACTICE TIPS YOU CAN USE TO REPRESENT YOUR CLIENTS ACCUSED OF MORE SERIOUS DRUG & TRAFFIC OFFENSES INCLUDING…
• Lab reports in drug cases
• Driving while suspended and enhanced penalties
• Jurisdiction issues for serious motor vehicle accidents
• Increased refusal penalties
• Assault
• Defenses to no-insurance cases
• Drug recognition expert cross-examination
• How to impress the Court and not annoy the Court staff
• Forms, motions and demand letters
• Criminal case law developments during the past year
• Sentencing arguments in multiple offense cases
• What’s new on the Alcotest 7110 breath testing machine
• New laws and pending legislation
…and more

Presented in cooperation with the NJSBA Municipal Court Practice Section, NJSBA General Practice Section, and the NJSBA Young Lawyers Division

For registration costs and details, contact
New Jersey Institute for Continuing Legal Education
One Constitution Square, New Brunswick, New Jersey 08901-1520
732-249-5100
http://www.njicle.com/seminar.aspx?sid=362 732-249-5100
program: S1507d-14380

Wednesday, August 06, 2008

State of New Jersey v. Michael A. Cooper

08-06-08 A-1066-06T4

On remand following the Appellate Division's decision ordering that sentences be served concurrently, and not consecutively as originally imposed, the aggregate sentence imposed on remand cannot be longer than the period of parole ineligibility flowing from the original sentence as well as the original aggregate specific term; hence, on remand when a consecutive sentence must be made to run concurrent with a sentence carrying a parole ineligibility term under the No Early Release Act, the new specific term sentence imposed cannot be greater than that which produces an 85 percent parole ineligibility term greater than the original period of parole ineligibility.


Editor, Mitch Zuckerman

State v. Oscar Osorio

08-04-08 A-2067-05T4

Under the 2005 decision of the Supreme Court of the United States in Johnson v. California, a defendant may establish a prima facie case of the discriminatory use of peremptory challenges by producing evidence sufficient to support an inference that discrimination has occurred. Therefore, the part of our Supreme Court's decision in Gilmore that required a defendant to show a "substantial likelihood" of the discriminatory use of peremptory challenges to establish a prima facie case has been superseded by Johnson.

State v. Robert K. Thompson, et al.

08-01-08 A-2279-07T4

Violation of the Conflicts of Interest Law and a corresponding Code of Ethics of a department of State government, standing alone, does not provide a basis for criminal prosecution for official misconduct. We affirmed the dismissal of counts containing such charges. But when such violations are combined with official acts benefiting or intending to benefit the party with whom the public official has a conflict, official misconduct may be charged. We reversed the dismissal counts containing such charges.

State of New Jersey v. Cecilia X. Chen

07-31-08 A-4251-06T5

The admissibility of the identification evidence presented at trial is the most significant issue raised on this appeal from a conviction for attempted murder. The victim initially identified the defendant under highly suggestive circumstances that posed a significant risk of compromising the initial and subsequent identifications. Law enforcement officers had no role in creating, encouraging or permitting the highly suggestive procedures utilized at the time of the initial identification.

We conclude that when there is evidence that the highly suggestive words or conduct of a private citizen pose a significant risk of misidentification, a preliminary hearing on admissibility of the identification is required. The holding is based on the court's responsibility to ensure that evidence of pre-trial identifications meet the standard for admission of such evidence, N.J.R.E. 803, and the Court's authority to exclude evidence of subsequent identifications that are of such questionable reliability that the probative value is substantially outweighed by the risk of prejudice and misleading the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299, 316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).

State OF New Jersey - In the Interest of X.B.

07-31-08 A-3053-06T4

X.B., a juvenile, was arrested for trespassing on public housing property, despite being notified that he was on a list prohibiting him from being on the housing complex property. Following his adjudication as a delinquent, he appealed, arguing his inclusion on the list was unconstitutional as applied to him.

We affirmed the trial court's finding of delinquency and found no constitutional infirmity as applied to him. We did, however, caution public entities who maintain such lists to consider adopting regulations regarding one's placement on and removal from the list and establishing a procedure whereby one can challenge placement on the list.

State v. Nazario Ventura & State v. Leidy Granados

8-5-08 (A-45-07) & (A-74-07)

A motion for remission of forfeited bail is assessed in a fact-sensitive manner, weighing a multitude of factors outlined in State v. Hyers and its progeny. A crucial factor in every bail remission case is whether the defendant remains a fugitive. In each of these cases, there was no abuse of discretion in thedenial of the separate motions to remit the forfeited bail.

State v. Scott E. Schnabel

7-29-08 (A-13-07)

The Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence was properly admitted and, in light of that evidence, evidence of third-party sexual abuse should have been admitted.

Monday, July 28, 2008

State of New Jersey v. Joseph M. Bringhurst

07-23-08 A-4302-06T5

We conclude that post-conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must comply with Rule 7:10-2, and are subject to the five-year limit contained in Rule 7:10-2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself.

In this case, where defendant's prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief in his PCR petition. Therefore, its denial was appropriate.


Editor, Mitch Zuckerman

State v. V.D.

07-23-08 A-2357-06T5

Defendant entered a negotiated plea of guilty to two counts of the fourth-degree crime of possession of a false document,
N.J.S.A. 2C:21-2.1(d). The trial court placed defendant on probation with the special condition that she notify the Bureau
of Immigration and Customs Enforcement (ICE). We struck that condition. It was not reasonably contemplated by defendant when she pled guilty and, in any event, exceeded the authority of the trial court.

State v. Rambo

07-22-08 A-5923-04T4

Defendant, who admitted shooting and killing his wife, was convicted of murder. The trial court correctly refused to charge passion/provocation manslaughter. Defendant argued he was entitled to a new trial because the Probate Part had refused, under the "Slayer Statutes" to allow him access to funds to retain private counsel of his choice. We did not procedurally have jurisdiction to review the orders of the Probate Part because defendant's appeal was only from the judgment of conviction.

Monday, July 21, 2008

State v. Shariff Ingram

7-21-08 (A-58/59-07)

When a defendant is charged as an accomplice and lesser-included offenses already are charged in an indictment, the trial court comprehensively must charge the jury on the elements both of the lesser-included crimes and of accomplice liability.
Nevertheless, the failure to so separately charge the jury here did not constitute reversible error. The prosecutor did not misstate the applicability of the statutory affirmative defense to felony murder. In these circumstances, it was error for the
trial court to instruct the jury that the defendant’s voluntary absence from the trial could be construed by the jury as evidence of consciousness of guilt, and that error mandates a new trial.

Tuesday, July 15, 2008

State v. Darren L. Bradshaw

7-10-08 (A-46-07)

The judgment of the Appellate Division is affirmed, but for different reasons. The trial court abused its discretion when it denied defendant from fully presenting his alibi testimony and the preclusion of that testimony constituted harmful error, requiring a new trial; consequently, the Court need not reach the constitutional issue. At any retrial, the prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim.

State v. Janet Gelman, n/k/a Caitlin Ryerson

7-8-08 (A-42-07)

The current N.J.S.A. 2C:34-1 is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. The Court is thus
compelled to apply the doctrine of lenity and dismiss the indictment.

State of New Jersey v. Anthony Gioe, et al.

07-02-08 A-1214-06T5

The novel issue addressed in this appeal is whether a search warrant is invalid where an affiant failed to appear
personally before a municipal court judge as required under Rule 3:5-3(a). We found the "insufficiencies or irregularities" in
the proceedings to obtain the search warrant did not violate defendant's substantive rights, and they did not invalidate the
search warrant that was issued. R. 3:5-7(g). Accordingly, we affirmed the order denying defendant's motion to suppress.

Tuesday, July 01, 2008

State v. Kenneth Nero

6-30-08 (A-32-07)

To convict a defendant of first-degree robbery involving the threat of the immediate use of a deadly weapon by simulation,
the jury must find that the simulation was undertaken with a purposeful state of mind. The trial court’s jurysufficiently imparted the requisite mental state.


Mitchell Zuckerman - Editor, Criminal Law Blog

State v. Charles S. Thomas

6-26-08 (A-62-07)

The extended-term-sentencing statute provides that a judge must place on the record his or her reasoning for applying an
extended term to a different charge than that sought by the prosecutor. Therefore, this matter must be remanded to the
trial court for an explanation of why it declined to accept the prosecutor’s application to apply an extended term sentence to
the eluding count and instead applied the extended term to the robbery count.

State v. Diara Barden

6-24-08 (A-23-07)

The evidence that defendant sold drugs to the co-defendant over a six-month period prior to the robbery was evidence of other
crimes that was unduly prejudicial and should have been excluded.

State v. Ryan Buda

6-23-08 (A-4/5-07)

The trial court did not abuse its discretion in determining that the child’s statements to his mother and the DYFS worker were
properly admitted into evidence as “excited utterances” under N.J.R.E. 803(c)(2). The Child’s statements were not testimonial
and, hence, their admission at trial did not run afoul of the Confrontation Clause.

State in the Interest of J.A.

6-23-08 (A-2-07)

The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger.
The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the
admission of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him.

State v. James Dorman & State v. William Sweet

6-23-08 (A-1-07) & (A-38-07)

The ampoule testing certificates and the breath testing instrument inspection certificates are hearsay statements
admissible under the business records exception to the hearsay rule. Those records also are nontestimonial and thus are admissible under the Confrontation Clause.

State v. Luis Garcia

6-18-08 (A-120-06)

The trial court abused its discretion in not granting an adjournment to enforce the order to produce the defense witness
from a prison. The Court remands the matter to the trial court for a hearing at which defendant will be given the opportunity
to call the witness. At that hearing, if the witness gives testimony that would have been favorable to defendant at his
trial, then defendant will have shown that his constitutional right to compulsory process was violated. In that case, the
trial court must vacate defendant’s convictions and order a new trial.

State v. Tykim Kemp

6-16-07 (A-124-06)

The details of Kemp’s confession to having engaged in a two-day robbery spree were admissible, but the admission of evidence of a prior uncharged robbery involving Kemp was error requiring a retrial.

State v. Franklin Jack Burr, II

6-11-07 (A-36-07)

The proffered expert testimony on defendant’s diagnosis with Asperger’s Disorder was relevant and material to his explanation
of himself and his conduct. Preclusion of that evidence constituted reversible error necessitating a new trial. Also,
if on remand the trial court is faced with a request by the jury for a replay of the videotaped pretrial interview of A.A., the
court first should inquire whether the jury would be satisfied with a readback of the testimony. If the jury persists in its
request for a video playback, then the court must determine whether the jury must also hear a readback of any testimony that
the court concludes is necessary to provide the proper context for the video playback.

State v. Wilberto Rodriguez

6-9-07 (A-25/26-07)

Based on the New Jersey Code of Criminal Justice, a person who kills in the honest and reasonable belief that the protection of
his own life requires the use of deadly force does not kill recklessly. The State’s failure to prove beyond a reasonable
doubt that defendant did not act in self-defense in repelling his attacker entitles defendant to an exoneration of criminal
liability on the murder, aggravated manslaughter, and manslaughter charges.

State v. Mylee Cottle

5-6-08 (A-111-06)

An attorney has a per se conflict of interest when both the attorney and the client are simultaneously under indictment in
the same county and are being prosecuted by the same prosecutor’s office. Without an informed waiver made in court
and on the record, prejudice will be presumed, rendering the representation ineffective. The undisclosed conflict in this
case denied the juvenile the effective representation of counsel guaranteed to him under Article I, Paragraph 10 of theJersey Constitution and he is entitled to a new trial.

State v. Michael Lisa

4-22-08 (A-12-07)

The grand jury instructions incorporating duty principles from the Restatement of Torts suffered from a fatal flaw that could
have been the substantial motivation for the return of the reckless manslaughter charge, and dismissal was the only correct
course of action under the circumstances.

State v. Shirley Reid

4-21-08 (A-105-06)

Pursuant to Article I, Paragraph 7, of the New Jersey Constitution, the Court holds that citizens have a reasonable
expectation of privacy in the subscriber information they provide to Internet service providers. Accordingly, the motion
to suppress by defendant Reid was properly granted because the police used a deficient municipal subpoena. Law enforcement
officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to
the subscriber. The State may seek to reacquire the information with a proper grand jury subpoena because records of the
information existed independently of the faulty process used by the police, and the conduct of the police did not affect the
information.

State v. Carlos Feal

4-8-08 (A-16-07)

The holding of Daniels should be given pipeline retroactivity but, in this case, the Daniels violation does not warrant
reversal of Feal’s convictions.

State v. Adams & State v. Comer

3-26-08 (A-103-06) & (A-116-06)

On this record, the Court declines to reevaluate the standards for the admissibility of out-of-court identifications. Under
current standards, there was sufficient credible evidence to affirm the trial court’s decision to admit the identification
testimony. It was not plain error for the trial court to fail to give a cautionary charge on the use of Harrison’s testimony
and guilty plea. Finally, defendants’ presumptive sentences, imposed prior to State v. Natale, do not require remands.

State v. Jane H. Chun, et al.

3-17-08 (A-96-06)

The Court adopts, as modified, the Special Master’s reports and recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006, stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth therein.

State of New Jersey v. Murray Aikens, et al.

06-30-08 A-2281-07T4

Flight from one state to another constitutes a violation of the Federal Fugitive Act, and United States Marshals are authorized to make a warrantless arrest of a person who they have probable cause to believe has violated that Act.

Mitchell Zuckerman - Editor of NJ Criminal Law Blog

State of New Jersey v. Maribel Rolon, et al.

06-20-08 A-1049-06T4

In this appeal, we reverse defendant's conviction for first-degree robbery and remand for a new trial. Although the jury determined defendant was armed with a deadly weapon——a knife——the court committed reversible error when it instructed:
"defendant's intent with respect to the [knife] is irrelevant."

State of New Jersey v. Jacob Burno-Taylor

06-19-08 A-0265-07T4

Because defendant's right to remain silent was not scrupulously honored, the trial court should have granted defendant's motion to suppress his statement.

State of New Jersey v. Steven R. Fortin

06-04-08 A-3579-07T4

Defendant convicted of capital murder committed in 1994 cannot be sentenced to life-without-parole because at the time of offense the maximum parole ineligibility term was thirty years and under the December 17, 2007 amendments to the murder statute the defendant can no longer present mitigating factors to reduce the sentence to such term if not outweighed by aggravating factors. The State did not advocate trying the matter as a capital case would have been tried to achieve a sentence of life-without-parole. Moreover, the holding is narrow as amendments such as the life-without-parole provisions of N.J.S.A. 2C:11-3 and No Early Release Act statutes would affect the sentences of capital murders after those statutes took effect.

State of New Jersey v. Sky Atwater, a/k/a Tyrone Johnson

5-21-08 A-3771-04T4

1. Where the jury's repeated questions indicated confusion about the requisite mental state for vehicular homicide, it was not sufficient for the trial court to re-charge the jury on recklessness. Rather, the trial court should have compared recklessness with negligence, in light of the jury's questions. Denial of defendant's request to charge negligence in response to the jury's questions was reversible error.

2. It was reversible error for the trial court to preclude a defendant from cross-examining the State's expert on the coefficient of friction, a factor the expert testified was critical in formulating his opinion on the speed of defendant's vehicle at the time of the accident.

3. The trial court committed plain error when it failed to strike and give a curative instruction for the prosecutor's repeated remarks that overstepped the bounds of propriety and deprived defendant of a fair trial.

4. The trial court's denial of defendant's application to argue negligence in summation under the circumstances of this case contributed to cumulative error.

5. In a vehicular homicide case where there is evidence that defendant may have been impaired by the use of alcohol, but no evidence that he was driving while intoxicated (DWI) under the statutory standard of N.J.S.A. 39:4-50, the trial court should instruct the jury on the blood alcohol concentration (BAC) required for a per se DWI.

State of New Jersey v. Philip J. Castagna

05-12-08 A-4402-06T5

In trial of former police chief for arson and conspiracy to murder his wife, fact that the wife obtained a domestic violence temporary restraining order against defendant resulting in his suspension from office deemed admissible under Rule 404(b) on State's theory of motive. Similarly, charges later filed by wife of violation of the TRO and terroristic threats, resulting in conviction on disorderly persons charges and forfeiture of defendant's office, also held admissible as to motive. Jury to receive limiting instructions including an instruction that defendant's conviction on disorderly persons charges was reversed after defendant's indictment on arson and conspiracy charges.

State of New Jersey vs. William Schadewald

05-05-08 A-1191-06T5

1. A defendant convicted of a second or subsequent offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50, who seeks a step-down in sentence on the ground that one or more of the prior convictions were uncounseled, pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), must first petition for postconviction relief (PCR) in the municipal court in which the prior uncounseled conviction occurred.

2. The PCR proceedings in municipal court are governed by Rule 7:10-2(f) and (g).

State of New Jersey v. Brandon Krause

04-17-08 A-3737-06T5

Based on defendant's failure to meet his burden of proving facts that would establish that the Hackettstown noise ordinance was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1 to -23, the ordinance was held valid and the conviction affirmed. However, the opinion noted that local noise ordinances may require DEP approval to be enforceable at least with respect to certain facilities, such as commercial and industrial sites.

State of New Jersey v. James Robinson

04-15-08 A-6381-05T4

In this appeal, we reverse the trial court's denial of defendant's motion to suppress evidence found in his dwelling. Our decision is grounded exclusively under the rights conferred in Article I, paragraph 7 of the Constitution of the State of New Jersey. In executing a knock-and-announce warrant, the police must give the occupants of the dwelling a reasonable opportunity to respond before resorting to the use of force to gain entry to the residence. Here, the police broke down the entrance door of the dwelling, twenty to thirty seconds after announcing their presence, thus converting the knock-and-announce warrant into a de facto no-knock warrant. Furthermore, the use of a so-called flash bang explosive device by the police was factually unwarranted, and rendered a nullity the warrant's knock-and announce condition imposed by the court.

Monday, June 30, 2008

State of New Jersey v. Forrest M. Baker, Sr.

04-14-08 A-6018-05T4

Defendant, a federal inmate at the Fort Dix Correctional Facility in Wrightstown, was produced for pre-trial appearances and for trial in the Law Division by way of the judge's "order to produce." We concluded that defendant's pre-trial motion to dismiss the indictment pursuant to the "anti-shuttling" provision of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-4, was properly denied. Because a writ of habeas corpus ad prosequendum is not a detainer for IAD purposes, the statute was not triggered and the motion was properly denied.

State of New Jersey v. Brenda Hoffman

03-31-08 State of New Jersey v. Brenda Hoffman
A-6473-06T4

In this appeal, we reverse an order admitting defendant into a Pretrial Intervention program over the prosecutor's objection. We conclude the victims' status as police officers does not eviscerate N.J.S.A. 2C:43-12(e)(4), which requires prosecutors to consider "[t]he desire of the complainant or victim to forego prosecution."

State of New Jersey v. Hiram Rodriguez

03-28-08 A-4614-05T4
In this appeal, the court determined that the police
complied with the "reasonable wait time" standard and therefore
did not violate the "knock and announce" rule, which is
incorporated in the Fourth Amendment and Article I, paragraph 7
of the state constitution, when they waited fifteen to twenty
seconds after announcing their presence before entering the
premises.
The State also argued in this appeal that Hudson v.
Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56
(2006), which holds that the Fourth Amendment does not require
application of the exclusionary rule upon a knock and announce
violation, should be followed in determining the appropriate
remedy for a similar violation of our state constitution. Since
the court found no violation, it recognized that it was not
necessary to decide this issue but expressed in dictum its doubt
that Hudson would be followed in determining the remedy
available upon a breach of the state constitutional knock and
announce rule.
Judge Stern filed a concurring opinion.

Thursday, May 22, 2008

Hot Topics in Municipal Court Practice- Forms available

NJSBA Annual Meeting
Trump Taj Mahal Casino Resort

Hot Topics in Municipal Court Practice
Thursday, May 22 2008 

8am - 9:30 am Diamond A

Could not attend? Need forms?
Send email to Kenvnjlaws@verizon.net and advise which form you would like. The form will be sent to you within 2 days, or fax us your email address 732-572-0030 fax

Name ___________________

Email ___________________
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: 
Paris P. Eliades, Esq. 
Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq.

Kenneth Vercammen & Associates,
Edison
Past Chair Municipal Court Section
2005 NJSBA Municipal Court Attorney
of the Year
Editor- NJ Municipal Court Law Review

CD with forms and Materials
provided to all attendees!
02 Lt of rep only.doc
02 DISC.doc
02a DISC to DMV.doc
02d Disc_Complainant.doc
03D Retainer-MUN COURT.doc
04 Hearing notice.doc
100 Cross Exam Q-DWI.doc
AG Guidelines binding.doc
Appeal Fee Bill to Client.doc
atty_guidelines_0505.pdf
Bail reduce Mt.doc
Brief post convict vacate plea.doc
Conditional Discharge Pet Cl.doc
constructive poss.doc
Court cannot handle discovery.doc
Crim interview aba.doc
crim- Specific defenses.doc
Defense Affidavit to Client.doc
DISC to Client from Prosecutor.doc
DUI Motions non disc- jury.doc
DWI- Blood defense brief.doc
DWI- expert letter.doc
DWS Fine reduced parking ticket.doc
Expungement recommend.doc
MIRANDA br.doc
More disc br.doc
Mt for Civil Reservation.doc
Mt forSlap.doc
Mt to be Relieved.doc
Mt- Dismiss No disc mun Pros.doc
Mun Ct Interview.doc
MVC_ DMV - Follow-up Hearing.doc
MVC_ DMV points for Atom.doc
No discovery dismiss Brief.doc
No Show in Court.doc
OBJ TO LAB CERT.doc
OPRA Brief Crim.doc
Order mark try or dismiss.doc
Order to be Relieved.doc
Pros- missing abstract.doc
Refusal Brief wrong statement.doc
Storm Cert priv pros.doc
Sup-Miranda.doc
SUPPRESSION MT.doc
SUPPRESSION BRIEF.doc
Chun discovery brief
www.BeNotGuilty.com

Can’t attend? Need forms?
Send email to Kenvnjlaws@verizon.net and the materials will be sent to you within 2 days, or fax us your email address 732-572-0030 fax

Name ___________________

Email ___________________

Wednesday, May 21, 2008

Edward Kahler sworn as Cranbury Chief of Police effective June 1, 2008

Edward Kahler sworn as Cranbury Chief of Police effective June 1, 2008
Photo Featured: New Chief Ed Kahler, Lt. Rick Varga; Chief Jay Hansen; Past Prosecutor Kenneth Vercammen

http://www.njlaws.com/cranpolicestation.htm

State v. Mylee Cottle

5-6-08 (A-111-06) State v. Mylee Cottle

An attorney has a per se conflict of interest when both the
attorney and the client are simultaneously under indictment in
the same county and are being prosecuted by the same
prosecutor’s office. Without an informed waiver made in court
and on the record, prejudice will be presumed, rendering the
representation ineffective. The undisclosed conflict in this
case denied the juvenile the effective representation of counsel
guaranteed to him under Article I, Paragraph 10 of the New
Jersey Constitution and he is entitled to a new trial.

State v. Michael Lisa

State v. Michael Lisa 4-22-08 (A-12-07)

The grand jury instructions incorporating duty principles from
the Restatement of Torts suffered from a fatal flaw that could
have been the substantial motivation for the return of the
reckless manslaughter charge, and dismissal was the only correct
course of action under the circumstances.

State v. Shirley Reid

4-21-08 State v. Shirley Reid (A-105-06)

Pursuant to Article I, Paragraph 7, of the New Jersey
Constitution, the Court holds that citizens have a reasonable
expectation of privacy in the subscriber information they
provide to Internet service providers. Accordingly, the motion
to suppress by defendant Reid was properly granted because the
police used a deficient municipal subpoena. Law enforcement
officials can obtain subscriber information by serving a grand
jury subpoena on an Internet service provider without notice to
the subscriber. The State may seek to reacquire the information
with a proper grand jury subpoena because records of the
information existed independently of the faulty process used by
the police, and the conduct of the police did not affect the
information.

State v. Carlos Feal (A-16-07)

State v. Carlos Feal (A-16-07)
4-8-08

The holding of Daniels should be given pipeline retroactivity
but, in this case, the Daniels violation does not warrant
reversal of Feal’s convictions.
5-21-08 State of New Jersey v. Sky Atwater, a/k/a Tyrone
Johnson
A-3771-04T4

1. Where the jury's repeated questions indicated
confusion about the requisite mental state for vehicular
homicide, it was not sufficient for the trial court to re-charge
the jury on recklessness. Rather, the trial court should have
compared recklessness with negligence, in light of the jury's
questions. Denial of defendant's request to charge negligence in
response to the jury's questions was reversible error.

2. It was reversible error for the trial court to
preclude a defendant from cross-examining the State's expert on
the coefficient of friction, a factor the expert testified was
critical in formulating his opinion on the speed of defendant's
vehicle at the time of the accident.

3. The trial court committed plain error when it failed
to strike and give a curative instruction for the prosecutor's
repeated remarks that overstepped the bounds of propriety and
deprived defendant of a fair trial.

4. The trial court's denial of defendant's application to
argue negligence in summation under the circumstances of this
case contributed to cumulative error.

5. In a vehicular homicide case where there is evidence
that defendant may have been impaired by the use of alcohol, but
no evidence that he was driving while intoxicated (DWI) under
the statutory standard of N.J.S.A. 39:4-50, the trial court
should instruct the jury on the blood al(BAC) required for a per se DWI.

State of New Jersey v. Philip J. Castagna

State of New Jersey v. Philip J. Castagna 05-12-08
A-4402-06T5

In trial of former police chief for arson and conspiracy to
murder his wife, fact that the wife obtained a domestic violence
temporary restraining order against defendant resulting in his
suspension from office deemed admissible under Rule 404(b) on
State's theory of motive. Similarly, charges later filed by
wife of violation of the TRO and terroristic threats, resulting
in conviction on disorderly persons charges and forfeiture of
defendant's office, also held admissible as to motive. Jury to
receive limiting instructions including an instruction that
defendant's conviction on disorderly persons charges was
reversed after defendant's indictment on arson and conspiracy charges.

Expungement Petition of Robert Ross

In the Matter of the Expungement Petition of Robert Ross
A-0990-07T4
05-06-08

The expungement statute, N.J.S.A. 2C:52-2, permits
expungement of an indictable conviction only if the petitioner
"has not been convicted of any prior or subsequent crime." We
construed the statute and held that if a petitioner commits two
crimes at different times, he is precluded from seeking
expungement even if he is sentenced and convicted for the two crimes on the same day.

State of New Jersey vs. William Schadewald

05-05-08* State of New Jersey vs. William Schadewald
A-1191-06T5

1. A defendant convicted of a second or subsequent
offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50,
who seeks a step-down in sentence on the ground that one or more
of the prior convictions were uncounseled, pursuant to State v.
Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429,
112 L. Ed. 2d 413 (1990), must first petition for post-
conviction relief (PCR) in the municipal court in which the
prior uncounseled conviction occurred.

2. The PCR proceeRule 7:10-2(f) and (g).

Hawthorne PBA Local 200 v. Borough of Hawthorne

04-29-08 Hawthorne PBA Local 200 v. Borough of Hawthorne, et al.
A-4504-06T2

The issue in this appeal is whether, in a mayor-council
form of government under the Faulkner Act, the appointment and
promotion of police officers may be delegated by the Borough
Council to the mayor, whom the council has designated as the
"appropriate authority" pursuant to N.J.S.A. 40A:14-118, a
general law that addresses the creation and internal structure
of municipal police departments. The Law Division dismissed the
plaintiff's challenge to the ordinance delegating that authority
to the mayor, and we affirmed.

Janon Fisher v. Division of Law

04-28-08 Janon Fisher v. Division of Law
A-2288-06T3; A-2448-06T3

The Division of Law properly calculated the "special
service charge" for responding to a request under the Open
Public Records Act for production of e-mails and computer files
prepared by assistant and deputy attorneys general based on the
time expended by those attorneys in retrieving and reviewing the
requested government records to identify privileged materials.
Where certifications that the Division of Law filed with the
Government Records Council clearly indicate that the redacted
material in documents produced in response to an OPRA request is
privileged, there is no need for a remand for the purpose of
requiring the Division to submit a more specific Vaughn index.

tate of New Jersey v. Brandon Krause

04-17-08 State of New Jersey v. Brandon Krause
A-3737-06T5

Based on defendant's failure to meet his burden of proving
facts that would establish that the Hackettstown noise ordinance
was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1
to -23, the ordinance was held valid and the conviction
affirmed. However, the opinion noted that local noise
ordinances may require DEP approval to be enforceable at least
with respect to certain facilities, such as commercial and
industrial sites.

tate of New Jersey v. James Robinson

04-15-08 State of New Jersey v. James Robinson
A-6381-05T4

In this appeal, we reverse the trial court's denial of
defendant's motion to suppress evidence found in his dwelling.
Our decision is grounded exclusively under the rights conferred
in Article I, paragraph 7 of the Constitution of the State of
New Jersey.

In executing a knock-and-announce warrant, the police must
give the occupants of the dwelling a reasonable opportunity to
respond before resorting to the use of force to gain entry to
the residence. Here, the police broke down the entrance door of
the dwelling, twenty to thirty seconds after announcing their
presence, thus converting the knock-and-announce warrant into a
de facto no-knock warrant. Furthermore, the use of a so-called
flash bang explosive device by the police was factually
unwarranted, and rendered a nullity the warranannounce condition imposed by the court.

State of New Jersey v. Forrest M. Baker, Sr.

04-14-08 State of New Jersey v. Forrest M. Baker, Sr.
A-6018-05T4

Defendant, a federal inmate at the Fort Dix Correctional
Facility in Wrightstown, was produced for pre-trial appearances
and for trial in the Law Division by way of the judge's "order
to produce." We concluded that defendant's pre-trial motion to
dismiss the indictment pursuant to the "anti-shuttling"
provision of the Interstate Agreement on Detainers (IAD),
N.J.S.A. 2A:159A-4, was properly denied. Because a writ of
habeas corpus ad prosequendum is not a detainer for IAD
purposes, the statute was not triggered and the motion was
properly denied.

State of New Jersey v. Brenda Hoffman

03-31-08 State of New Jersey v. Brenda Hoffman
A-6473-06T4

In this appeal, we reverse an order admitting defendant
into a Pretrial Intervention program over the prosecutor's
objection. We conclude the victims' status as police officers
does not eviscerate N.J.S.A. 2C:43-12(e)(4), which requires
prosecutors to consider "[t]he desire of the complainant or
victim to forego prosecution."

Saturday, May 10, 2008

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
NJSBA Annual Meeting and Convention.

NJSBA Annual Meeting and Convention Annual Meeting and Convention 2008 Trump Taj Mahal Casino Resort in Atlantic City May 21 - 23. The NJ State Bar Association will hold its 2008 Annual Meeting and Convention at the Trump Taj Mahal Casino Resort, right on the Atlantic City Boardwalk. A favorite location for the NJSBA's annual conference, the boardwalk offers the Atlantic City seaside right outside the doors of the resort. Attend from May 21-22 for education, top speakers and networking with the top legal professionals in the state and your fellow NJSBA members.

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)

Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Transitional & Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.

Speakers: Paris P. Eliades, Esq. - Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq. - Kenneth Vercammen & Associates, Edison

http://www.njsba.com/calendar_events/index.cfm?fuseaction=annual_mtg#207

Alcotest Update - State v. Chun
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)

Thursday, May 22 (1 - 2:30 p.m.)

Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)

An analysis of the recent Chun discussion and the documentation required in order to admit the Alcotest 7110 into evidence.

Speaker: Jeffrey E. Gold, Esq. Vice Chair, Municipal Court Practice Section Gold & Farrow, PC, Cherry Hill
KENNETH VERCAMMEN ATTORNEY AT LAW

Sunday, March 30, 2008

States can permit Post Conviction Motions in cases before 2004 based on Crawford Hearsay Challenge.

Danforth v. Minnesota 128 S. Ct 1029 (2008)

Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague.

Saturday, March 29, 2008

State v. Douglas Noble

03-13-08 A-3394-05T4

The State may, consistent with a defendant's right to
remain silent, cross-examine him on the late filing of his alibi
notice when such cross-examination is designed to highlight
inconsistencies between the alibi notice and defendant's
testimony a mere two days later. We conclude that here, where
the cross-examination on the timing of the alibi notice served
to demonstrate the unlikelihood that defendant's recollection of
the facts supporting his alibi defense would change so
significantly in a two-day period, the State's cross-examination
did not constitute a prohibited evisceration of defendant's
right to remain silent. Instead, such cross-examination
constituted a permitted "litigational" use of the late
furnishing of an alibi notice.
03-12-08 State of New Jersey v. Hipolito Ruiz
A-5529-06T4
When a jury acquits a defendant of the sole charge in the
indictment, retrial for a lesser-included offense on which the
jury was deadlocked is not constitutionally barred.

State v. Cadree B. Matthews

03-10-08 A-6040-05T4

An anonymous caller stated that a person in a burgundy
Durango with temporary license plates was flashing a gun at a
certain location late at night. Police proceeded to the scene,
located the vehicle and performed a pat-down search of its three
occupants. The search revealed no weapons. The police then
secured the occupants away from the vehicle and searched the
passenger compartment, finding a handgun beneath the front
passenger seat. While conducting the search, a fourth person,
later identified as the defendant, attempted to get to the
vehicle. When asked to leave the scene, he refused. Defendant
was then arrested for disorderly conduct and resisting arrest.
When he was secured in the back of a patrol car, defendant
confessed that the handgun police found in the vehicle belonged
to him. After the denial of a motion to suppress the handgun on
the basis of an illegal search, defendant pled guilty to
unlawful possession of a weapon, resisting arrest, and unlawful
possession of a handgun by certain persons not to have weapons.
We reversed the convictions as to the unlawful possession
of a weapon and certain persons, based upon the illegality of
the search. The search was not justified under Terry v. Ohio
because the anonymous tip, standing alone, did not provide an
independent basis for the stop, frisk of the occupants, or
search of the vehicle.

State v. J.A.

03-06-07 A-2554-05T4

In this appeal from the denial of a post-conviction relief
petition, we hold that the Supreme Court's decision in State v.
P.H., 178 N.J. 378 (2004), that a jury may consider the timing
of a victim's disclosure of sexual abuse in assessing
credibility, and therefore disapproving the contrary holding in
State v. Bethune, 121 N.J. 137 (1990), is not to be given
complete retroactivity to encompass defendant's case on
collateral review, but is limited to pipeline retroactivity
only.

State v. Yusef Allen

03-04-08 A-4685-05T4

On appeal from the denial of defendant's petition for postconviction
relief, the Appellate Division remands for an
evidentiary hearing to determine why defendant declined an offer
for mistrial made by the judge during trial (counsel's statement
during trial that he wasn't doing it for "economic" reasons did
not suffice) and for an evaluation of the credibility of an
individual who gave a post-judgment affidavit exculpating
defendant.

State v. Terrence Echols

02-26-08 A-2377-05T4

In this appeal, the court reversed the denial of
defendant's petition for post-conviction relief, finding
defendant was denied the effective assistance counsel because:
(1) trial counsel failed to fully elicit testimony regarding
defendant's alleged alibi; (2) appellate counsel failed to
pursue on direct appeal the trial judge's refusal to give the
jury an alibi instruction; (3) trial counsel failed to object
and appellate counsel failed to argue on appeal that the
prosecutor's argument in his opening statement -- that the
jurors were safe from defendant and others in the courtroom only
because of the presence of sheriff's officers -- was prejudicial
to his right to a fair trial; and (4) the confluence of these
omissions, in the context of other circumstances, such as the
testimony of witnesses in handcuffs and prison garb, generated a
reasonable doubt about the reliability of the outcome.

State of New Jersey in the Interest of D.Y.

02-04-08 A-0490-07T4

The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.

State v. Adams

3-26-08 (A-103-06)

On this record, the Court declines to reevaluate the standards
for the admissibility of out-of-court identifications. Under
current standards, there was sufficient credible evidence to
affirm the trial court’s decision to admit the identification
testimony. It was not plain error for the trial court to fail
to give a cautionary charge on the use of Harrison’s testimony
and guilty plea. Finally, defendants’ presumptive sentences,
imposed prior to State v. Natale, do not require remands.

State v. Jane H. Chun

3-17-08 (A-96-06)

The Court adopts, as modified, the Special Master’s reports and
recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its
results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006,
stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth
therein.

State v. Andre Johnson

2-26-08 (A-81-06)

Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.

State v. Charles A. Watkins, III

2-21-08 (A-118-06)

Individuals acting alone in furtherance of their own criminal
interests who commit a series of offenses such as thefts or
forgeries are not “part of a continuing business or enterprise”
because they are not part of a larger whole and are not acting
in concert with others.

State v. Sulaiman A. Sloane

2-11-08 (A-40-06)

During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.

State v. David L. Wilder

1-31-08(A-87-06)

Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.

State v. William J. Allegro

1-29-08 (A-119-06)

Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.
1-28-08 State v. George Jenewicz (A-78-06)
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.

Wednesday, March 12, 2008

Criminal Mischief

Kenneth Vercammen is the Middlesex County Bar Municipal Court Attorney of the Year
Criminal Mischief 2C:17-3

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

Criminal Mischief 2C:17-3. a. Offense defined. A person is guilty of criminal mischief if he:

(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S. 2C:17-2; or

(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property.

b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service.

(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00. It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.

(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.

(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.

c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.

d. As used in this section:

(1)"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.

(2)"Spray paint" means any paint or pigmented substance that is in an aerosol or similar spray container.

Amended 1979, c.178, s.30; 1981, c.290, s.17; 1991, c.336, s.1, 1995, c.20, s.2; 1995, c.251, s.1; 1998, c.54, s.1; 1999, c.95, s.1.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500




Receive free NJ Laws Email newsletter with current laws and cases


Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.

Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.




Tracey Lewis
Assistant Editor

Criminal Attempt

Middlesex County Bar Municipal Court Attorney of the Year
2C:5-1 Criminal attempt

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

2C:5-1. Criminal attempt a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

d. Renunciation of criminal purpose. When the actor's conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

Within the meaning of this chapter, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Renunciation is also not complete if mere abandonment is insufficient to accomplish avoidance of the offense in which case the defendant must have taken further and affirmative steps that prevented the commission thereof.

L.1978, c. 95, s. 2C:5-1, eff. Sept. 1, 1979.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500




Receive free NJ Laws Email newsletter with current laws and cases


Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.

Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.


Tracey Lewis
Assistant Editor